In wage and hour collective actions, the "recruit, probe and multiply" nature of the litigation results in the redefinition of workers’ duties, solicitation of collective groups, and countless depositions to establish liability, collectivity and damages. These tactics increase the costs for employers and make litigation impossibly expensive.
On May 16, 2012, a federal judge in Florida reined in some of the more extreme practices of plaintiffs in an order disqualifying several wage and hour plaintiffs’ attorneys. Judge Cecilia Altonaga found the conduct of plaintiffs’ counsel so out of bounds that she disqualified him and his law firm from proceeding in the case. The decision may reflect increased discomfort among district judges with the proliferation of these cases on their dockets.
The court found that plaintiffs’ attorney violated Florida Rule of Professional Responsibility 4–4.2 when he engaged in ex parte communication with a corporate representative. During a break in arbitration hearing testimony, the corporate representative went to use the bathroom. Plaintiffs’ attorney approached him and said "Dude, you guys are a big company. You need to have outside counsel who specializes in this stuff.” The attorney also insisted that the corporate representative terminate the company’s relationship with its counsel and that he would refuse any settlement negotiations with those defense counsel. The corporate representative stated that the plaintiffs’ attorney intimidated him to the point that he later vomited in the bathroom.
In addition, the court found that the attorney, and his associates, violated rule 4– 8.4 by humiliating and disparaging opposing counsel in a way prejudicial to the administration of justice. The attorney appeared at depositions in shorts and a T-shirt, conducted them at a noisy coffee shop, played video games during testimony, and drew inappropriate pictures and offensive caricatures of opposing counsel during the depositions.
Finally, the court faulted counsel for soliciting a former management employee of defendant and taking a damaging declaration from him without first informing opposing counsel. This violated the company’s right to have counsel present for any meeting where the speaker might commit the defendant company to liability vicariously. The court concluded that the “egregiousness of the Florida Bar Rule violations” drove its decision and warranted disqualifying plaintiffs’ counsel from further representation.
Although the conduct cited in this case was extraordinary, the decision has at least set an outer limit on what it will tolerate in a plaintiff’s effort to force settlement of bundled claims where the cost, distraction and annoyance form the basis for large settlements more than the merits of the case. Technical or inadvertent violations can still create liability and plaintiffs know how to drive up the cost of merits defense. At least here, the court has put a stop to some of the more abusive tactics.